HELD ON: 07-06-2000



COMMISSIONER: I appreciate your courtesy in rising when I come in, but it won't be necessary in future, thank you. Mr Marcus?

MR MARCUS: Justice King, thank you. Justice King, yes, I am here on behalf of and I wish to address to you very briefly an application, the purpose of which is to obtain permission for and I should emphasise other television broadcasters to broadcast the proceedings of this Commission either live or by way of a delayed broadcast, much in the same way as the proceedings of the Truth Commission and the Human Rights Commission have in the past been broadcast.

For purposes of this application, we have prepared an affidavit which is before you, which sets out the nature of's interest in broadcasting these proceedings. I would not wish to unnecessarily delay this application, save to highlight certain aspects of this affidavit if I may, and in particular, if I could refer to paragraph 11, in which really the gist of's interest in the matter is set out. There it is stated -

"Insofar as the applicant's obligations as a broadcaster are concerned, the applicant is bound by its conditions of licence and its general obligations as a broadcaster.

The applicant is the holder of a private free-to-air television broadcast licence and broadcasts under the name and style of The applicant broadcasts on a daily basis, not only a number of news bulletins, but various actuality and current affairs programmes, which are of public interest. Pursuant to its conditions of licence and its general obligations as a broadcaster, the applicant is required to present news of public interest."

I respectfully submit, says Mr Patel -

"That the proceedings presently under consideration manifestly fall within the mandate of the type of facts and information which would ordinarily be carried by the applicant, and which the public at large have a right to receive.."

Moreover says Mr Patel,

"I submit that given the nature of the current proceedings there is a larger than usual interest by members of the public in obtaining precise and accurate information from the proceedings, rather than secondary reporting such as that which would appear should the applicant be denied to broadcast the proceedings on its television station."

I make this submission not simply in terms of the general mandate of the applicant, pursuant to its conditions of licence, but also specifically in terms of the rights conferred on the applicant, and members of the public in terms of Section 16 of the Constitution.

I will make certain brief submissions in that regard in a moment. May I also highlight paragraph 16 of the affidavit, in which Mr Patel says the following -

"I respectfully submit that the nature of modern communications is such that the public are dependant upon the media for access to important information. This is preeminently the case when it comes to the reporting on proceedings such as those in question, because few members of the public are able to be physically present during these proceedings. Given the vast publicity which this matter has attracted, the need to ensure that all members of the public have access to the proceedings, via television broadcast, is crucial. The parties in the position of the applicant fulfil a vital function in the public interest, they are in a real sense the ears and eyes of the public, without which the public generally would be ignorant of what takes place in courts of law and other tribunals such as this Commission."

Justice King, as is indicated, the application which we address to you is based fundamentally on the guarantee of freedom of expression enshrined in Section 16 of the Constitution and we submit that the terms of that guarantee, the specific wording are significant, because it states among other things that "everyone has the right to freedom of expression, which includes freedom of the press and other media" and most significantly, "freedom to receive or impart information or ideas".

It scarcely needs to be emphasised that courts throughout the world, and including the Constitutional Court, have recognised that freedom of expression is integral to democracy itself.

Justice King, as you pointed out in your opening remarks, your powers derive among other things from the Commissions Act, Section 4 of which requires that the evidence and addresses be heard in public. This is of course coupled with a discretion to which you have referred, to exclude individuals or classes of persons, whose presence is not necessary or desirable, but we would emphasise that the starting point is one of openness, and the application we direct to you, is designed to facilitate openness in the context of the technology that is available to us in the 21st century.

We would submit to you that when interpreting your powers and in exercising such discretion as you do enjoy, that that discretion must give full effect to the guarantee of freedom of expression enshrined in the Constitution.

I would wish, only with your leave, to refer to one authority which I emphasise at the outset, I do by way of analogy, because I appreciate that what was at stake in the case to which I refer, was different. The authority to which I refer is a judgment of the Witwatersrand Local Division, of Justice Ackerman, in a case called S v Lephele, and it is reported in 1986 (3) SALR 661. There His Lordship Mr Justice Ackerman was considering an application by the Prosecution to exclude members of the press and the public from a criminal trial during the course of a particular witness, but in the course of the judgment Justice Ackerman referred extensively to the leading decision of the United States Supreme Court on open justice, and that is the case of Richmond Newspapers v Virginia, and the passage to which I would wish to refer you is from the United States Supreme Court. There in the leading opinion of Chief Justice Berger, the following was stated, and he is addressing the concept of open justice. He said the following:

"The early history of open trials in part reflects the widespread acknowledgement long before there were behavioural scientists, that public trials had significant community therapeutic value. Even without such experts to frame the concept in words, people sense from experience and observation that especially in the administration of criminal justice, the means used to achieve justice, must have the support derived from the public acceptance of both the process and its results. When a shocking crime occurs, a community's reaction of outrage and public protest often follows."

The United States Supreme Court went on to say -

"A result considered untoward may undermine public confidence and where the trial has been concealed from public view an unexpected outcome can cause a reaction that the system at best has failed, and at worst, has been corrupted. To work effectively it is important that society's criminal processes satisfy the appearance of justice. The appearance of justice can best be provided by allowing people to observe it."

Chief Justice Berger goes on to say -

"People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing. When a criminal trial is conducted in the open, there is at least an opportunity both for understanding the system in general and its workings in a particular case. Instead of acquiring information about trials by first hand observation, or by word of mouth from those who attend it, people now acquire it chiefly through the print and electronic media. In a sense this validates the media's claim of functioning as surrogates of the public, while media representatives enjoy the same right of access as the public they often are provided special seating and priority of entry so that they may report what people in attendance have seen and heard. This contributes to public understanding of the rule of law, and to comprehension of the functioning of the entire criminal justice system."

Finally Justice King, it was stated -

"Public access is essential therefore if trial adjudication is to achieve the objective of maintaining public confidence in the administration of justice."

Those sentiments have been followed by other South African courts and I would submit to you, are entirely consonant with the demands of the Constitution. I readily accept and appreciate that we are not concerned, as you have been at pains to emphasise, with a criminal trial, but we are concerned with an inquiry of an enormous public interest.

We would submit that the benefits of the kind of television coverage which we have in mind, are three-fold. First, it would significantly expand public access to these proceedings in a manner which enhances the quality of that access, and by that I mean it would provide accurate and immediate accessibility to these proceedings;

secondly it would have a far wider reach. It would reach an audience that might otherwise have little prospect of informing themselves of an event of undoubted significance. It can be accepted, we would submit, that a substantial portion of the South African public acquire their news primarily from television, and this is at least in part a product of the nature of our particular society.

The third advantage we would submit is that it would enhance the status and credibility of the process itself, which it scarcely needs emphasising, is being watched with an intensity the world over. It would engender, we submit, a confidence that the issues which have touched our nation, are being scrupulously investigated. Having said that, Justice King, we recognise that there are also potential countervailing interests, and let me address those briefly.

It may well be that certain witnesses might feel intimidated by the presence of cameras, or for some other reason, would be reluctant to testify if they knew that their testimony was being filmed. It is also possible that participants in the process may be unable to resist the temptation to play up to the cameras. Those are real fears and they are fears which we do not discount. There may well be practical questions which might trouble you, for example the number of television cameras and the potential disruptive impact that that may have on these proceedings. I am authorised to convey to you that my client has undertaken to make available to any other television broadcaster its facilities, so that the result would be merely the presence of possibly two cameras, by and any other television broadcaster which is interested in carrying the broadcast, would work off's feed, so that would obviate any potential disruption of these proceedings.

What we seek therefore, Justice King, is permission, unobtrusively and subject to your overriding discretion in any particular individual instance or class of cases, to broadcast these proceedings, either live or by delayed transmission, and subject to any reasonable condition that you may consider ought to be imposed.

COMMISSIONER: Can you give me some idea of what you would regard as a reasonable condition to be imposed?

MR MARCUS: The kind of conditions that I have in mind, would for example relate to the positioning of the cameras, might also relate for example to the extent to which the cameras are required to be in a fixed or rigid position, or the extent to which they may rove and any other condition, for example relating to lighting, sound equipment, anything of that sort, which might in any way be considered to hinder either the witness or the Commission itself.

COMMISSIONER: Intending taking technical considerations, is what you are suggesting?


COMMISSIONER: Could be ameliorated ...

MR MARCUS: Yes, those are the problems that can and would be ameliorated subject to any direction from yourself.

COMMISSIONER: Thank you Mr Marcus. We will start at this side of the table, MR DICKERSON, first of all I think for the record, would you indicate who your team is, and who your client is?

MR DICKERSON: Mr Chairman, I represent Hansie Cronje and I am together with Mr Sackstein, my Instructing Attorney from Israel, Sackstein, and Mr Druker from KG Druker.

As far as the present application is concerned, our stance is that we are opposed to the introduction of live visual media during the hearings. We believe that it would place an unnecessary and undesirable strain on the participants in these proceedings. The pressures which have already been brought to bear upon certain of the participants, my client, other players, administrators, has been enormous and the introduction of live media during proceedings, will only exacerbate that.

The principles of freedom of speech are not, in our view, in any way infringed by the exclusion of the visual media. has till now without inhibition expressed its views on the subject matter of this Commission and it will doubtless continue to do so. There is a running transcript of these proceedings, which we understand will be made available shortly after evidence is given by any particular witness. That will be available to the printed media, to the visual media and any other interested parties.

On that basis, there can be no complaint that is confined to second-hand reporting. They will have the actual evidence and the transcript. It was suggested that the crux of's interest in this matter was expressed in paragraph 11 of the affidavit. Perhaps a more relevant and immediate concern appears in paragraph 7.2, where no doubt urged by the precepts of freedom of speech, we are told that immediately set about selling advertising time.

There are other media interests in these proceedings, presumably who also have commercial interests and we don't see why in principle one should be advantaged above another.

Furthermore, we suggest that the interests of this Commission would not be advanced or furthered by allowing the media to be present, live media. To do so would make many of the witnesses and other participants unwilling participants in a television drama to be played out throughout their homes, the country and abroad in circumstances where we have little doubt that they would not choose to be in that position.

That has a number of ramifications, not the least of which is the obvious reluctance on the part of those individuals to testify or to testify freely. We believe that the object of the inquiry, which after all is to investigate the matters raised in frames of reference, would best be furthered by a comfortable and relaxed environment, which obviously is going to be reported on, but not at the sort of level which involves the intrusion of cameras. And lastly, we have all seen and experienced the problems that arise with trial by television, nobody needs to be reminded of the O.J. Simpson fiasco and we would suggest that that should be avoided here at all costs.

I have nothing further to add, thank you.

COMMISSIONER: Thank you MR DICKERSON. Mr Gishen, before I call on you, I have received a note to say that a Mr Paul Cainer of Live Africa, wishes to address the inquiry, really in the same manner as Mr Marcus has advanced the case for Is Mr Cainer here? Are you a lawyer, Mr Cainer?

Are you a representative of the company? Alright. Now you have heard what Mr Marcus has had to say, Mr Cainer, you don't need to repeat Mr Marcus' argument, if you wish to add to it, you are welcome to do so.

MR CAINER ADDRESSES: Thank you. Your Honour, our case is in relation to another form of media, which is radio, but we believe that this radio request would actually meet many of the desires and interests of television as well.

We are the largest provider of radio news to the independent radio sector in South Africa, we would also be willing in a pool basis, to provide the facility for the court's proceedings to be transmitted to the public via audio as opposed to television.

Our view is that there is a right for the public to have access to what is actually being said. It is not in our view necessary for the actual picture though, of the individual who is appearing to be shown to the wider public. The key issue is what the person has to say. There are two means of transmitting this, one would be in text form which is what you are allowing, and the other would be in audio form, the actual words of the participant as heard by yourself, and we believe that modern media is such that at least half of the public's access to the media is through audio or televisual film, in other words electronic form, and therefore to privilege one section of the media, that is the print media over other parts of the media, is unequal in terms of the Constitution, and in terms of general principle.

Where the opportunity exists as it now does, to convey what is actually said by the individuals, to the public, by means of audio, we believe it must be done. The other advantage of this is that there is no need for any operator to be seen in your courtroom, in your hearing room. The microphones can be wired in such a way that just as you can see the microphone cables now, they would lead outside to a room beyond your purview and these will then be put into a mixing desk and any electronic media who wishes to access this audio, would plug their own machines into that, and take that down to their studio.

You could, as my learned colleague here said, you could decide in your own judgment, that this should not be done live, it should be done in delayed form, or as part of normal news broadcasts, these are restrictions which you might decide to impose in the interest of fair running of the proceedings. We would not object to that. We do not claim that it has to run live, otherwise it would be an unfair abuse of the system, we think that is within your discretion. You should decide Sir whether this should be done live or not, but what we think is uncontestable is that the public has the right to hear the words of the individuals in their own voice, and we think that this would also be a very fair compromise for television, because they could use those same audio clips in their news bulletins with a still photograph of the individual concerned. You won't see the lips moving, but you will certainly hear what they had to say and that would certainly meet the equal treatment of the media to which we have referred.

Thank you Sir.

COMMISSIONER: May I just ask you. I am not altogether au fait with the procedures that you have outlined. What is the difference between the process being done on a live basis and that being done on a delayed basis, could you just shortly tell me please?

MR CAINER: Certainly we can, Judge. Some feed would come from that little box, could be sent by a system called ISDM, and CODEC, straight to the studios of the radio stations and television stations concerned, and they would be broadcasting those words as they happen. That is technically feasible and not difficult to achieve. But you could make a ruling Sir that this is not conducive to justice and that the proceedings should be delayed, and that only a certain amount can be broadcast in this way or you could say that they should only be able to use their normal news broadcasts, perhaps hourly bulletins or nightly news bulletins, to carry this audio.

I think it will be fair for you to make any such ruling, although I would of course prefer that they would be allowed to be carried live.

COMMISSIONER: Thank you. MR DICKERSON, do you, are you able to express a view on this new suggestion, would you like to think about it?

MR DICKERSON: Mr Chairman, I think that is quite a compelling case for not allowing television in. As far as the introduction of recordings are concerned, the recordings are already being made and they are going to be transcribed. There doesn't seem to be any need to actually duplicate that process.

I might also add that the recording made by the Commission and the transcription will not be edited, which inevitably involves a sort of selection process on the part of the media person concerned, which as we all know, can result in a fairly substantial and selective distortion of what has actually been said or done.

COMMISSIONER: Mr Gishen, would you tell me who you are appearing for?

MR GISKEN: Mr Chairman, I, together with my colleague, Mr Auswan, represents Mr Crookes and Mr Cullinan. We concur entirely with what MR DICKERSON has put before you, Mr Chairman. I don't think I have much to add in that regard, thank you.

COMMISSIONER: So specifically Mr Crookes and Mr Cullinan would prefer not to be televised?

MR GISKEN: Exactly.

COMMISSIONER: And what about Mr Cainer's proposal?

MR GISKEN: I think the same applies.

COMMISSIONER: Mr Fitzgerald, would you also please announce yourself and your team?

MR FITZGERALD: Mr COMMISSIONER, I appear for a total of 37 present and former players. For your convenience I prepared a list of my clients, which perhaps I should hand up to you. Mr COMMISSIONER, for the record, I am instructed by Mr Peter Wheelan of Findlay & Tait.

COMMISSIONER: Would you like to address me?

MR FITZGERALD: Our clients similarly oppose the application, both in regard to TV coverage and radio coverage. It has been interesting both Mr Cainer and Mr Marcus have emphasised the Constitutional rights of their clients, our clients similarly have Constitutional rights. Giving evidence at the best of times is a daunting experience and in our submission, it places unnecessary pressure upon our clients if everything that is here to take place, is recorded either by means of television or by means of radio.

COMMISSIONER: What particular aspect of the Constitution are you referring to, is it to privacy or ...

MR FITZGERALD: There is a right to privacy and that inter alia I would have regard to. Even the Constitutional rights contended for by Mr Marcus are subject to limitation, it is a weighing-up process and in our submission, the balance should fall in favour of the privacy, rights to privacy, inter alia of our clients, they are in fact the ones that are testifying and it seems to me, with respect, to be unfair that they should be exposed to additional pressures.

The media is in any event here, there is a verbatim record of the proceedings, and it is with respect unnecessary that one should go beyond that. We would therefore urge you in the exercise of your discretion, not to grant the application.

COMMISSIONER: In terms of the relevant Section of the Commissions Act, I must be guided by whether what is sought is either necessary or desirable. So if one of those is not applicable, then I think my discretion must be exercised against the application, you are saying it is unnecessary?

MR FITZGERALD: And in fact undesirable in the circumstances.

COMMISSIONER: For the reasons ...

MR FITZGERALD: For the reasons that I have submitted. Section 6 of the Commissions Act, does provide, as Mr Marcus pointed out, that the public should have access to the proceedings, our submission is that the access that they have is more than sufficient in the circumstances. Thank you Mr COMMISSIONER.

COMMISSIONER: Could you first of all announce your team and who you are representing?

MR MANCA ADDRESSES: Yes, Mr COMMISSIONER, I represent the United Cricket Board of South Africa. As you are aware, I appear together with my learned Senior, Mr Jeremy Gauntlett, who unfortunately is not able to attend this morning. I am here on instructions of Alex Abercrombie of Hofmeyr Herbsteins and Ginwalha Inc. Mr COMMISSIONER, the UCB supports an open and transparent inquiry. The manner in which the proceedings are to be conducted is however a matter entirely in your discretion and in the circumstances we leave this decision with respect, in your hands and we abide the decision. Thank you.

COMMISSIONER: Thank you. Mr Cainer I will hear you first in reply, I think, just on that ...


COMMISSIONER: Sorry, just a moment. Forgive me Ms Batohi, I neglected to call upon you to express your views.

MS BATOHI: I suppose being the only lady here, I am easily overlooked.

Mr COMMISSIONER, I agree with all my colleagues that have expressed their opposition to this application. I don't think it is in the interest of this Commission of Inquiry to have TV cameras or a radio transmission. My learned friends have referred to the Constitution and the rights, etc. I am sure everybody knows no right is absolute, there are limitations and in this regard, I submit that this application ought to be refused in the interest of the inquiry, all witnesses should feel absolutely at ease and not feel restrained in any way by the presence of either radio or TV.

COMMISSIONER: I suppose really one has to balance on the one hand what I think is undoubtedly so as Mr Marcus has submitted, and that is that it will reach a wider audience if - and Mr Cainer makes the same point - if their particular form of media is allowed. But on the other hand it is quite apparent from the submissions by yourself and your colleagues for the individuals represented, that it could have a seriously adverse effect on the freedom with which they feel able to give their evidence in what will in any event, undoubtedly be quite a formidable experience. Yes?

MR CAINER: Thank you Mr COMMISSIONER. You rightly pointed out Sir, that the Act makes it necessary for us to show you that it is both necessary and desirable for the proceedings to be carried in the way that we are proposing. Obviously I differ from my colleague from E.TV as to the necessity of visual moving pictures, but I do not differ from him at all in the argument that the public's access to the media is in both print form and electronic form, and in fact it is known, we can show you studies, that the majority of the public intake of information these days, and there are many surveys to prove this, the majority of the public in this country and abroad, but particularly in this country, the majority of the public receive their primary source of information, is the electronic media and in particular radio, which has a higher listenership than television. But we are not going to debate the merits of the two. The fact is that it is old-fashioned, antiquated and wrong to believe that simply by allowing the words that people say in a hearing like this, to be printed at a later stage, that this is sufficient public access.

It is a very strong case for arguing that at least the audio part of what people say, must be carried. Secondly, transcripts have been referred to as being recorded and then being handed out later. This we all know, and you know Sir, from your many years of experience on the bench, takes time, and considerable time. The public have the right to know as things happen and not weeks later.

Secondly the transcripts in previous occasions, have not been accompanied by an audio transcript, they have been written transcripts, so that argument does not hold any water.

COMMISSIONER: May I just interrupt you.


COMMISSIONER: Of course what I think could be arranged without any great difficulty, is for both your client, your company and Mr Marcus' client, to be represented by a media journalist representative who would take the notes that his or her colleagues are obviously busy taking and they would have access to their particular public in that way and it would be contemporaneous.

MR CAINER: May I come back on that Sir? Sir, with respect, not the primary way in which both television and radio are set up. Of course we may take text and report on it, and that is done, but the whole raison d'etre of radio and television is to convey what is happening in the world, through the actual words and the actual pictures in their case, of what goes on.

It would be like taking a Rolls Royce and expecting it to run like a Volkswagen. It has to be run, television has to be run through the use of the words Sir, of the people involved. To limit them to simply getting a text transcript and reading it out to their viewers or listeners, is in my view, completely unacceptable.

The second point, the press, I think it was the lawyer for Mr Crookes, said that the press tends to select and distort, or that television or radio, if we took extracts as opposed to doing the entire trial, would select or distort. This is exactly the same argument as a newspaper. Any news- gathering operation, and I am the Head of a large one, has to select in the public interest, it is our job, it is in our fact our Constitutional role, to take a huge amount of information, distil it, provide it to the public in forms which they can digest and to suggest that just because we cannot carry the entire transcript, every word, that by taking aspects of it, we are selecting or distorting any differently to what the print media does, is absolutely ludicrous Sir. It is in fact much more likely that the public will get what is actually said, if they hear the exact words.

It is so self-evident that I don't think I need to go on, on that.

Secondly, sorry thirdly, the case was made by the lawyer representing Mr Cronje, that I had actually made a good case against television, that was the opening remark by the lawyer for Mr Cronje. This is not my intention Sir, I actually in a sense, speaking on behalf of both types of media. I was only saying that the actual visual image conveyed by setting up two cameras, which could be seen to be distorting or intimidatory, is not necessary because the lack of intimidation of wires that just lead out of the courtroom to a back room, can actually meet the needs of television as well. I am saying that television is not indispensable, television does have the right to convey what is going on here by electronic means. I was just suggesting an alternative way that it could be handled in a less intrusive way. I do accept that we don't want an O.J. Simpson style of hearing.

What we are proposing is exactly the opposite, it is dignified, it allows media access, the electronic media access without distorting or intimidating the witnesses. I am therefore at a total loss to understand how lawyers representing the players could argue that having microphones, is going to intimidate witnesses. They are already speaking into microphones. Therefore the only argument they could possibly have would be perhaps that be hearing their voices on the radio, this will somehow produce an intimidatory effect. I cannot see how hearing their voices on the radio or seeing a still picture and hearing their voices on television, how this would produce an intimidatory effect on these gentlemen, especially Sir, when these gentlemen are public figures.

These people are paid considerable salaries to play a game of cricket on a field, to which the public is admitted by payment. The public has the right to know whether the money that they have been paying to go and watch these people play and earn large salaries, has been earned by fair competition or by some pre-arrangement which in a sense is what you Sir, are trying to find out. The public has a perfect right to know this and to know it in the best means, electronic or otherwise, available to it.

It is a public game, the public have the right to know what they have been getting.

COMMISSIONER: Of course they will know in due course when I produce my report.

MR CAINER: Yes Sir, but the point made by the UCB that they would like the hearings to be transparent and open and your own remarks this morning, that you want this hearing to be available instantly and immediately, you want it to be available to the public, and the Minister of Justice's comment on that point when he gave a press conference at the UCB's Headquarters and the Minister of Sport's comments to exactly the same effect, have all been geared to the understanding that there is a relevance and a need for the public to know now and not when your report comes out Sir.

If the public have the right to know now, they have the right to know by both print methods and electronic methods, which are both integral parts of the means of freedom of information in this country, Sir.

MR MARCUS: Thank you. Having heard my colleagues ranged on that side, it might be said to use a metaphor which will no doubt become current, that the odds are stacked against me, save for the UCB, that is.

It seems as if the opposition might be distilled down to the following.

The first is that there are alternatives to the kind of broadcasting for which we urge, that is of course correct. There are alternatives and they have been canvassed, but they are alternatives which are not of the sort which are conducive to this particular medium. The very medium with which we are concerned here, television, is a visual medium. We are seeking to present this inquiry through that medium, in the best means possible.

It has been suggested that we do not want this inquiry to generate into a trial by television, and the notorious example of the O.J. Simpson trial has been mentioned. It would be quite wrong, in our respectful submission, to elevate perhaps the most notorious example as being the norm, and there is no reason to assume whatsoever that the kind of antics which were seen in that particular trial, will be repeated before this inquiry.

Then it is said that there is the risk of distortion by means of selected editing. That is a bad argument to make precisely because the possibility of a live broadcast is the most effective means of obviating the need for any editing whatsoever. It is an argument indeed in favour of broadcasting, whether by radio or by television.

COMMISSIONER: But it can still be edited?

MR MARCUS: It can still be edited, and when it is edited, then television, radio and the print media are all in the identical situation, the risk of distortion is neither greater nor reduced, regardless of the medium concerned.

My learned friend, Mr Fitzgerald, rightly points to the fact that his clients also have Constitutional rights, nothing I have suggested, would wish to detract from that proposition, but it is a fallacy to assume in our submission that what we are dealing with here are rights which are in conflict with each other.

This is an open inquiry and the real question is how best will the requirement of openness and transparency be served and we would submit for the argument that I have already presented, that the kind of broadcast, the unobtrusive broadcast which we have in mind, at most would entail a minor deviation from the recognised and indeed centuries old principle of openness.

It is absolutely correct, Justice King as you have pointed out, that you have a discretion in this regard, but it is a discretion which we would submit, which must be exercised, having regard to the demands of the Constitution. Indeed Section 39(2) of the Constitution enjoins every Court and every Tribunal and this is a Tribunal, to interpret any statute and that would include the Commissions Act in a manner that promotes, that is the word used, that promotes the spirit, purport and the objects of the Constitution.

We would submit that there is really little to be said for a blanket form of opposition. We accept that in individual cases there may well be arguments which justify a curtailment of the rights to broadcast which we propose, but to cast it in blanket terms, we would submit is wrong.

In conclusion we would simply say this, it is possible that during the course of these proceedings, and we don't know how long they will take, but it is conceivable that the situation might change and if it does, we would obviously wish to have the ability to approach you afresh, should the need and the occasion arise.

COMMISSIONER: Mr Marcus, I was going to say just before you sit down, but of course you are seated, if as Mr Fitzgerald for argument's sake, has indicated, he has handed me a list of 37 clients and if he tells me that, as I have no doubt is the case, this has been anticipated, that he has instructions from his clients, that they will feel adversely affected by the presence of the TV cameras and or the form of production that Mr Cainer has in mind, I cannot easily go beyond that.

MR MARCUS: I don't wish to be understood as for one moment suggesting that the genuine concerns of Mr Fitzgerald's clients or anybody else here, should be lightly dismissed, but we would submit with respect that the position of the witnesses here needs to be really considered much in the same way as witnesses in any court proceedings are considered. Presumably, and I speculate here, if asked the vast majority of witnesses in any civil or criminal trial would prefer not to have any publicity whatsoever, including publicity in print media.

That is perhaps a natural desire of those who are testifying in a forum about matters which might be unpleasant or untoward, anything of that sort. The desire to keep that kind of matter confidential, is a natural and understandable desire. But there are countervailing considerations, not the ...

COMMISSIONER: May I just interrupt you, this isn't a desire to keep any evidence secret. It is a desire not to feel intimidated or otherwise troubled by the presence of the electronic media, which from my perspective could very much have a seriously adverse effect on the value and quality and extent of their evidence.

MR MARCUS: Justice King, if that is the consequence of the attitude of a particular witness, then obviously it is a powerful factor which would weigh with you in the exercise of your discretion. What we would simply say is this, that it is, it justifies an investigation in each individual case to ascertain what the nature of that fear is, and whether or not that fear is indeed one which will be such that the testimony will be either inhibited or the quality of the evidence will in some way be impeded or the work of the Commission will be undermined.

If the answer to those questions is in the negative, we would submit that there is a powerful case for permitting the broadcasting to take place.

COMMISSIONER: You are selecting that somehow or other, which doesn't readily occur to me as to its practicality, one should be selective about it with each witness. I really don't think that would work, I must say, and apart from the fact that I have it from Counsel that all their clients are against what you seek and I certainly don't see myself or anyone else acting in the capacity of a sort of an inquisitor to try and you know, ascertain what it is that concerns them.

This is a general reaction. I am merely putting to you as what you have already indicated to me quite correctly, is the case and that is a powerful consideration. Thank you.

Sorry, did you want - I interrupted you?

MR MARCUS: Justice King, I simply wanted to say that it is not our intention to place additional burdens upon yourself to conduct the kind of preliminary investigation which might be necessary, but there are again, we would submit, other ways of perhaps addressing that. They can, those kinds of problems might be able to be addressed and I speculate here, between legal representatives, so that if there were no legitimate objection, it might be possible in advance for the Commission to be informed that there are particular witnesses who do not have such an objection and in those circumstances, it might be permissible to approach you for permission for their testimony to be broadcast.

COMMISSIONER: Well, I would certainly be attentive to an understanding between legal representatives in any particular individual case, I don't know about the practicalities of moving all these cameras in and out, but leaving that aside, if there was for argument's sake, just because their representatives have taken a less positive stand than the other representatives, you were to reach some sort of an agreement with witnesses who are in the camp of the United Cricket Board, I don't close that door. I am not sure it would be a good idea to draw distinctions and - or have this go to a wider audience on a piecemeal basis, it might be unfair, but certainly my door is open to that - in the event that I should find against you on your main application, of course.

Be brief please.

MR CAINER: May I be very brief. Mr COMMISSIONER, I think the main point here is as my learned colleague next to me said, it clearly would be in the interest of everybody who gives evidence in a difficult matter, to have as little publicity as possible about that matter, so it is hardly surprising that you get a list of 37 cricketers or more, who would rather than not, get even more publicity than they are getting, but most of them are perfectly innocent one would suggest, if not all, I would not like to pre-judge that. Those who have nothing to hide, should stop trying to hide behind sections of media, saying only parts of media can report properly as it were, and others can't. It is impermissible for witnesses to say "because something might come up which I am uncomfortable with, I would rather that a large section of the media should be denied the correct access that it should have, to give the public its right to know". The fact that you have a list, in my view, is not a powerful argument Sir, the fact that they should object is just normal, par for the course, if I may use golfing parlance.

I don't think it carries much weight that they should object to widespread publicity and may I very briefly tell you that the Pakistan inquiry is a very useful guide to you, Sir, may I suggest, because what happened there was, that - and I followed that very closely because I was involved in the very first reports about match-fixing.

COMMISSIONER: Mr Cainer, I must again urge you to be brief.

MR CAINER: I will be very brief, but I think that Pakistan showed the classic reason why you should have allowed, they should have allowed electronic media in a form, because when text were published from that media and the normal journalists were in the audience and reported, the next day the same players who had said thing A, said no, they hadn't said it, they said thing B.

If there is the transparency of the audio being provided to the media, then you will not get these contradictions which elongated the process and distorted the process, let the process be clear, open, unambiguous and let's get to the bottom of the matter Sir, without obfuscation or the attempts by players to avoid their public duty to let us know what really happened Sir.

MR FITZGERALD: Mr COMMISSIONER, I apologise for interrupting, but I must just place on record that I resent some of the submissions made by Mr Cainer. The objection of the players to television and radio coverage is not an attempt to hide behind anything. There is full media presence here, there is a verbatim record, which I understand is a running record and will be available as it were, the next day and in the circumstances I submit that the argument of Mr Cainer is purely without any foundation.

COMMISSIONER: In fact, I suppose you would also say that the very fact of the sort of reproduction that is sought, would have an inhibiting effect on a witness who might otherwise not feel intimidated and give his evidence freely and ...

I am, thank you for the assistance that you have given me on this matter. I would like to think about it, and I will give a ruling in the first instance tomorrow morning, and if I haven't said so earlier, may I just say now or repeat that the proceedings will start at 09H30 tomorrow morning and I will give you a ruling on these two applications. Thank you very much.

Then we will continue, Ms Batohi, we will now continue or commence with the evidence?

Related Links:

Cricinfo's Coverage of Match-Fixing Allegations